A less government conservative Republican from Livingston County, MI
Opinions on this blog are those of the author and do not necessarily represent the opinions of the Livingston County Republican Party.
Chairman of LCRP since January 2013

Saturday, November 24, 2007

Part 5 - SCOTUS and the 2nd Amendment ruling (DC v Heller Preview)

After four parts regarding precident and background, we now get to the current case.

Part 1 was an overviewPart 2 focused on the original intent and the founding fathersPart 3 focused on early court cases before the Miller casePart 4 focused on US v Miller and later cases.

This is part 5 and focuses on the current case, DC v Heller. It was originally Parker v DC but was renamed due to court proceedings which I'll get to later. When someone says Heller case or the Parker case, they are referring to the same thing.

First of all, the best site the internet regarding information on this case is Gura and Possessky P.L.L.C. Alan Gura is the lead counsel in this case and uploaded all the public documents to his website. They also operate a blog titled DC Gun Case. Robert Levy and Clark Neily are also part of "The Parker Team." Levy is a senior fellow of the CATO Institute. Clark Neily is from the Institute for Justice. Both of them are libertarian leaning organizations. The Institute for Justice and the Cato Institute are not involved in the cases however. Levy is paying for this himself because he does not want to be beholden to anyone on this.

The players:Robert Levy - Levy was looking for a lawsuit since 02. Surprising to some, he's not a gun owner, but is strongly pro-2nd Amendment, as well as the rest of the constitution. He saw the shift in academic opinion on the 2nd Amendment, even among some liberals such as Laurence Tribe, the Emerson case, and John Ashcrofy shifting government's opinion and thought it was time for a challenge with the right case. He wanted a narrow case, and DC was the best place for it due to jurisdiction issues, as well as a total ban.

Dick Heller - A security guard who is armed while on duty, but not allowed to own a gun at home. His claim passed the standing challenge and won and is now in the Supreme Court. (and why the case was renamed DC v Heller) The other plaintiffs, including Parker, had their cases dismissed due to lack of standing.

Shelley Parker - A resident of a crime ridden neighborhood in DC. She wants a firearm to protect herself from drug dealers in her neighborhood. She was the lead plaintiff in the case, then Parker v DC.

Washington DC - Defendant for their law banning all pistols registered after 1977, and only allowing long guns which are not assembled, or having a trigger lock installed on them at all times. They may only be assembled and functional for recreational shooting. Moving a gun (including inside the home) is illegal without a special permit that is usually unavailible.

Anthony Williams - Then mayor of DC. Defendant due to enforcement of unconstitutional laws

There were four other plaintiffs as well. All cases were dismissed for standing outside of Heller because Heller tried to register a firearm and had standing because of that.

One things these people all have in common. They are good test cases. They are not criminals, nor are they members of "militia groups", etc etc.

Notice that I didn't mention the NRA. Gura and Levy took them to task and for good reason. They didn't want to go to court and wanted this to go through congress instead, so they tried to mess with the case. Here's the ABA journal article on it.They brought their own case which got defeated based on standing issues) They are on board now, but the credit here goes to the plaintiffs and the three lawyers behind this.

A list of the motions and pleadings are all here at Gura and Possessky. The case was filed in 2003 under the name Parker, et all vs District of Columbia, et all - shortened to Parker v DC.

There were fights on standing. That is finalized in appeals.

The Brady Center formerly known as Handgun Control, VPC, filed amicus briefs in favor of DC. The American Civil Rights Union and Heartland Institute filed amicus briefs in favor of Parker.

In 2004, the District Court ruled in favor of Washington DC stating that:

Because this Court rejects the notion that there is an individual right to bear arms separate and apart from service in the Militia and because none of the plaintiffs have asserted membership in the Militia, plaintiffs have no viable claim under the Second Amendment of the United States Constitution. Thus, plaintiffs' complaint must be dismissed and their Motion for Summary Judgment denied as moot.

The plaintiffs appealed to the DC Circuit of the US Court of Appeals. Heller was the only with standing here, and the court said that the other plaintiffs did not have an injury as they did not face imminent prosecution. Heller was denied a license for his gun, and had standing. That's why the case will later be renamed DC (Appellant) v Heller (Appelle).

For the DC appellees:Massachusetts AG Thomas Reilly, Maryland AG Joseph Curran, New Jersey AG Zulima Farber all joined in an amicus briefNew York and Chicago City Attorney's office Brady Center and City/County of San Francicso joined.

The Appeals Court Ruled:1. Five of the six plaintiffs did not have standing to sue (against)On the Second Amendment itself:

To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia

On Whether the 2nd Amednment applies to DC.

The District does not argue, nor could it, that even if the Second Amendment confers an individual right, that right is enjoyed only by the residents of states (that would mean that citizens of the United States who lived in territories, such as the Northwest Territory, prior to their acceptance as states, did not enjoy a constitutional right). In any event, the Supreme Court has unambiguously held that the Constitution and Bill of Rights are in effect in the District. See O'Donoghue v. United States, 289 U.S. 516, 539-41, 53 S.Ct. 740, 77 L.Ed. 1356(1933) (quoting Downes v. Bidwell, 182 U.S. 244, 260-61, 21 S.Ct. 770, 45 L.Ed. 1088 (1901)). “The mere cession of the District of Columbia to the Federal government relinquished the authority of the states, but it did not take it out of the United States or from under the aegis of the Constitution.... If, before the District was set off, Congress had passed an unconstitutional act affecting its inhabitants, it would have been void. If done after the District was created, it would have been equally void; in other words, Congress could not do indirectly, by carving out the District, what it could not do directly. The District still remained a part of the United States, protected by the Constitution.” Id. at 541, 53 S.Ct. 740. Rather, the District's argument amounts to an appendage of the collective right position. It is only if one reads the prefatory language as limiting the operative clause to a guarantee about militias that one ever arrives at the question whether the guarantee is confined to state militias.

On whether it allows a ban on pistols

D.C.Code § 7-2502.02 FN18 prohibits the registration of a pistol not registered **170 *400 in the District by the applicant prior to 1976. FN19 The District contends that since it only bans one type of firearm, “residents still have access to hundreds more,” and thus its prohibition does not implicate the Second Amendment because it does not threaten total disarmament. We think that argument frivolous. It could be similarly contended that all firearms may be banned so long as sabers were permitted. Once it is determined-as we have done-that handguns are “Arms” referred to in the Second Amendment, it is not open to the District to ban them. See Kerner, 107 S.E. at 225 (“To exclude all pistols ... is not a regulation, but a prohibition, of ... ‘arms' which the people are entitled to bear.”). Indeed, the pistol is the most preferred firearm in the nation to “keep” and use for protection of one's home and family. See Gary Kleck & Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun, 86 J. Crim. L. & Criminology 150, 182-83 (1995). And, as we have noted, the Second Amendment's premise is that guns would be kept by citizens for self-protection (and hunting).

Finally, on requiring guns to be unloaded:

Finally, there is the District's requirement under D.C.Code § 7-2507.02 that a registered firearm be kept “unloaded** and disassembled or bound by trigger lock or similar device, unless such firearm is kept at [a] place of business, or while being used for lawful recreational purposes within the District of Columbia.” This provision bars Heller from lawfully using a handgun for self protection in the home because the statute allows only for use of a firearm during recreational activities. As appellants accurately point out, § 7-2507.02 would reduce a pistol to a useless hunk of “metal and springs.” Heller does not appear to challenge the requirement that a gun ordinarily be kept unloaded or even that a trigger lock be attached under some circumstances. He simply contends that he is entitled to the possession of a “functional” firearm to be employed in case of a threat to life or limb. The District responds that, notwithstanding the broad language of the Code, a judge would likely give the statute a narrowing construction when confronted with a self-defense justification. That might be so, but judicial lenity cannot make up for the unreasonable restriction of a constitutional right. Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold it unconstitutional

In summary:

For the foregoing reasons, the judgment of the district court is reversed and the case is remanded. Since there are no material questions of fact in dispute, the district court is ordered to grant summary judgment to Heller consistent with the prayer for relief contained in appellants' complaint.

DC Appealed. The en banc hearing (entire panel) was denied by the DC appeals court. DC appealed to SCOTUS, which will hear the case. What is SCOTUS going to do? That is the question of the ages. The official question is narrow.

The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions, D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the Second Amendment rights of individuals who are not affiliated with any state- regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

If I had to bet money, I suspect this will follow Emerson to a large degree with a balancing test with Justice Kennedy writing the opinion in a 5-4 or maybe 6-3 decision with several concurring/dissenting opinions ranging for Stephens backing a total ban and Thomas saying nearly all of them are unconstitutional.

I'm cautiously optimistic about this. I would however have one more justice retire, preferably Stephens or Breyer before this is heard. With 08 and a democrat controlled senate, this may be the best chance for the 2nd Amendment to be properly decided. One piece of good news is that unlike in Miller, Heller and his counsel are showing up to the hearings.

Lastly, this case will probably be heard in 2008, just in time for the presidential election. This can make things real interesting, and if the candidates line up properly, may just wake up the conservative base one more time and give the GOP a lucky second chance unless an anti-gunner in nominated (and Bill Richardson is the democrat's pick)

1. The primary original meaning of "militia", from the Latin, is military service, or, because it includes law enforcement and disaster response, defense activity, and only secondarily those engaged in it, or the subset of those who may be required to engage in that that activity. It is a common idiom in English of the founding era to use the same word for an activity and those engaged in it. Understood in this way, the word is not a plural form, and a single individual, engaged in defense activity, is engaged in militia.

2. The only regulation that is "reasonable" is regulation that enhances the effectiveness of militia, with an expansion on what that includes and does not include.

We are seeking amicus filers willing to incorporate the above arguments in their briefs.